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Arlington v. Warner

Court of Appeals of Texas, Second District, Fort Worth

June 20, 2019

City of Arlington, Appellant
v.
Betty Warner, Appellee

          On Appeal from the 236th District Court Tarrant County, Texas Trial Court No. 236-292659-17.

          Before Kerr, Birdwell, and Bassel, JJ.

          MEMORANDUM OPINION

          Elizabeth Kerr Justice.

         In this interlocutory appeal, the City of Arlington appeals from the trial court's order denying its no-evidence summary-judgment motion challenging the trial court's subject-matter jurisdiction over Betty Warner's inverse-condemnation suit. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8). We will affirm.

         Background

         In 2005, Warner purchased a three-acre residential property in Arlington. There is a private pond on the property, and the City owns a drainage easement across the property. Warner alleges that when it rains, excessive amounts of water from the surrounding streets (along with large amounts of garbage, waste, and contaminants allegedly diverted by the City) flow through the City's storm sewers and flood her property and pond with water and debris. She also claims that the water and debris exceed the drainage easement's boundaries and its permissible usage and scope. She further complains that the City required her to install an x-inlet box on her property that "creates a damning [sic] effect" that prevents water from draining off her property. According to Warner, the City's actions have deprived her of the enjoyment of her property and pond.

         In June 2017, Warner sued the City for inverse condemnation under article 1, section 17, of the Texas constitution, claiming that the City's intentional acts resulted in the taking, damaging, and destruction of her property for public use. See Tex. Const. art I, § 17. Warner sought injunctive relief and monetary damages.

         In September 2018, the City filed a no-evidence summary-judgment motion asserting that its governmental immunity was not waived because (1) Warner failed to adquately plead an inverse-condemnation claim, and (2) she had presented no evidence on the elements of that claim. The City attached no evidence to its motion. Warner responded, and the City objected to some of Warner's summary-judgment evidence. The trial court sustained the objections but denied the City's motion.

         The City has filed an interlocutory appeal raising two issues: (1) whether a governmental entity may use a no-evidence summary-judgment motion as a vehicle to challenge subject-matter jurisdiction after the opposing party has had adequate time for discovery and (2) if such a motion is a permissible means to challenge subject-matter jurisdiction, whether Warner's response to the City's no-evidence summary-judgment motion raised a fact issue on the jurisdictionally required intent element of her inverse-condemnation suit.

         Inverse Condemnation

         Article I, section 17, of the Texas constitution-the "takings clause"-waives governmental immunity for the taking, damaging, or destruction of property for public use without adequate compensation. See id.; Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex. 1980). When a governmental entity intentionally takes private property for public use without adequately compensating the landowner, "the owner may recover damages for inverse condemnation." Tarrant Reg'l Water Dist. v. Gragg, 151 S.W.3d 546, 554 (Tex. 2004). To establish an inverse-condemnation claim under the Texas constitution, a plaintiff must plead and prove (1) an intentional governmental act (2) that resulted in the taking, damaging, or destruction of her property (3) for public use. See Gen. Servs. Comm'n v. Little-Tex Insulation Co., 39 S.W.3d 591, 598 (Tex. 2001).

         Standard of Review

         Because it challenged the trial court's subject-matter jurisdiction over Warner's inverse-condemnation suit, we review the City's no-evidence summary-judgment motion as a plea to the jurisdiction. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (providing for an appeal from an interlocutory order granting or denying a governmental unit's plea to the jurisdiction), § 101.001(3)(B) (defining "governmental unit" to include a city as a political subdivision of the state); Thomas v. Long, 207 S.W.3d 334, 339 (Tex. 2006) ("The Legislature provided for an interlocutory appeal when a trial court denies a governmental unit's challenge to subject matter jurisdiction, irrespective of the procedural vehicle used."); Tex. Dep't of Criminal Justice v. Simons, 140 S.W.3d 338, 349 (Tex. 2004) (observing that an interlocutory appeal may be taken under section 51.014(a)(8) whether a jurisdictional argument is presented in a plea to the jurisdiction or a summary-judgment motion because the right of appeal is tied to the substance of the issue raised and not to any particular procedural vehicle). A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for lack of subject-matter jurisdiction. Harris Cty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). Whether a court has subject-matter jurisdiction is a legal question, and we review de novo a trial court's ruling on a plea to the jurisdiction. Tex. Dept of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226, 228 (Tex. 2004).

         A jurisdictional plea may challenge the pleadings, the existence of jurisdictional facts, or both. Alamo Heights I.S.D. v. Clark,544 S.W.3d 755, 770 (Tex. 2018). Although the City challenged Warner's pleadings in the trial court, it has expressly waived that challenge on appeal (along with most of its challenges to the jurisdictional facts) and focuses solely on whether Warner established the "jurisdictionally required element of intent." The standard of review for a jurisdictional plea challenging jurisdictional facts "mirrors that of a [traditional] summary judgment under Texas Rule of Civil Procedure 166a(c)." Miranda, 133 S.W.3d at 228. Under this standard, as the movant, the governmental entity has the burden to assert and prove with evidence that the trial court lacks subject-matter jurisdiction. See Mission Consol I.S.D. v. Garcia,372 S.W.3d 629, 635 (Tex. 2012) ("Initially, the defendant carries the burden to meet the summary judgment proof standard for its assertion that the trial court lacks jurisdiction."); see also Miranda, 133 S.W.3d ...


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